With the start of a new academic year upon us, as approximately 150,000 students are in their first weeks of law school, I’m writing a series of reflections on the conversations we had with podcast guests, thinking about the future of legal education and of professional responsibility.

For our first episode, Madhav and I talked with Kim Lane Scheppele, a leading expert on illiberal autocracy and democracies under stress. She described how the election of populist leaders, like Viktor Orbán in Hungary, is often followed by efforts to use the law to undermine constitutional institutions, and why this can draw lawyers into an authoritarian project even if they don’t intend to support it:

When you put into the process laws that actually have the effect of undermining democratic institutions, you get a lot more buy-in than if you simply did it by edict or by force, and so it legitimates the entire enterprise of undermining democratic institutions. That’s why law becomes so crucial. Now, who are the lawyers who do this stuff? Some of the lawyers who do this are lawyers who believe in the leader and believe in the program. But often times you get lawyers doing this because law is like a giant math problem if you like math.

It’s just fun to play with the rules and think, well gee, you know, how would you do this? How would you do that? Is there a way you can make an argument for this, that, and the other thing, and frankly, legal education in many places, and here I include the U.S., lends itself toward exactly this kind of lawyering. Because how often do we take first year law students and say, argue the opposite of what you believe…. So lawyers have learned to be hired guns. They’ve learned to think that clever legal arguments are good lawyering, and they have much less training and much less grounding in the values that underwrite democratic institutions, so that the lawyers themselves may not realize how much they're undermining democratic institutions with the very things they're recommending. (11:17-12:16, 13:07-13:32)

I’ve continued to think about Kim’s observation that many lawyers treat legal argument like they’re solving a math problem. There is nothing new, or inherently malicious, about lawyers making clever arguments in favor of their clients. Much of legal education is devoted to learning how to do this. Indeed, lawyers have an ethical duty to “zealously represent” their clients. However, lawyers are generally not trained to consider the potential consequences for democracy of their legal arguments—to ask themselves whether the legal rule they are advocating for may undermine the foundations of our democratic system. This is where at least some of our problems arise. And this makes me recall something else we discussed during our conversation with Kim: Many lawyers in the United States simply can’t believe our democracy could fail, that it is breakable.

This ties into the myth of American exceptionalism, of course. Most U.S. lawyers are educated in a system that inculcates the idea that we have a uniquely strong democracy, that our constitution is the best of all possible constitutions, and by extension, that though our system of government may be sorely tested, it will never truly come apart at the seams. If one believes that our democratic system will endure forever, come what may, then we’re all just playing a game to be the cleverest lawyer in the room.

Instilling in lawyers a sense of the ultimate fragility of democracy, and of their individual duty to protect it, is a project that will require the participation of many institutions, but law schools must play a fundamental role in it. Law students hear plenty about the constitution and at least a little about their duty to defend it. More rarely are they asked to seriously consider what duties they, personally, bear to uphold our democratic system, and most law students are given very little instruction about the conditions under which democracies erode or fail. I wonder if constitutional law classes would land differently if students learned that the United States only met the basic requirements for a democracy after the Voting Rights Act was passed in 1965. Or if every 1L took a capsule course on how Hungarian democracy was dismantled through legal maneuvering under Orbán. I hope you’ll listen to the full episode for more of Kim’s insights on the role of legal education in shaping lawyers who will stand up for democracy, and lessons from democratic backsliding in Europe.

The following can be attributed to Jameel Jaffer, executive director, Knight First Amendment Institute at Columbia University:

“We welcome Judge Kelly’s order. Trump’s ban harms both the press and the public, which relies on journalists to report independently on the president and his administration. We hope that Judge Kelly will soon make his temporary order permanent, and that his permanent order addresses the news organizations’ First Amendment claims, not just their Fifth Amendment ones. The First Amendment bars the president from transforming the press corps into a propaganda machine.”

The Knight Institute and RCFP’s amicus brief argues that the press has, for over a century, fulfilled a crucial role by reporting on newsworthy events from within the White House on behalf of the American people, and that the president’s decision to ban news organizations from the White House based on the viewpoints expressed in their reporting violates the First Amendment. Read the brief here.

Read today’s temporary restraining order here.

Read more about the case, CNN v. Trump, here. 

The Knight Institute has supported the Associated Press in its challenge to its exclusion from the White House, filing three separate amicus briefs over a period of 18 months. The Institute has also supported The New York Times in its challenge to restrictions on access to the Pentagon. Earlier, the Institute successfully sued President Trump over his blocking of critics from his Twitter account, which the Institute argued was a “public forum” for First Amendment purposes.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

Of course, we need both stances. It’s hard to build something new when you’re getting run over and run off the field. Defense alone can’t produce a truly independent and in-depth press, free from undue corporate and government influence. But if we stop defending against blatant censorship and runaway consolidation, there’s little room left for viable alternative outlets.

The U.S. populace may not hold the media in particularly high regard at the moment. We face a fractured and truth-challenged world, with Trump poisoning public discourse and launching a decade’s worth of attacks on the press as “an enemy of the American people.” Yet, even as this authoritarian president attacks specific journalists, he retains the fig leaf of providing his followers with the “truth” on social media and decries only what he labels “fake news.”

So, if people agree that they want reliable facts and news—even if they can’t agree on what counts as a fact anymore—why do we rely on failing, advertising-driven business models and continually under-invest in the production of quality journalism and civic information? What problems stand in the way of producing this public good?

Trump himself, and his entire administration, are obviously a searing threat to journalism and to individual journalists’ livelihoods, safety, and freedom. Threats to shut out, silence, assault, or jail journalists are hardly a new or uniquely American phenomenon, but the rapid crescendo of such attacks under the second Trump administration is beyond alarming. At Free Press, we work to educate people about such harms, pass policies that protect against them (like shield laws and jawboning protections), and defend individual journalists from arrest and attack.

Free Press also fights corporate media consolidation, even though we don’t believe corporate media alone will produce journalism that serves all of us. There’s a tight nexus between authoritarianism and corporate consolidation. Merger parties will capitulate quickly to a corrupt regime in order to get their transactions approved. (It’d be nice to think that the fourth estate’s ethics make it immune to such tactics, but in an era of the Ellison family promising favorable coverage of the administration in exchange for antitrust approvals, we can’t fool ourselves.)

Recent developments like Disney standing up against the FCC’s threats to its ABC broadcast licenses, and even going on offense about the chilling impact of that agency’s actions, show that the tide may be turning. Big companies may have learned to stop routinely retreating, capitulating, and complying in advance when this administration pushes too far.

Yet even if the largest and most well-heeled outlets can stand up to those threats, there are still reasons to be concerned about media consolidation in authoritarian times.

For one, having fewer competing viewpoints and competing journalists is worse for expanding our horizons and uncovering the truth. For two, having fewer strong voices in the marketplace for ideas gives a government bent on censorship and narrative control a smaller number of chokepoints it needs to squeeze and coerce.

What’s more, even without an image-obsessed autocratic president overtly demanding more favorable coverage of himself and his administration, corporate consolidation is bad news. At Free Press, we’ve documented when fighting mergers and regulatory rollbacks that antitrust laws and broadcast ownership limits are necessary and effective in preserving local journalism, competition, and diversity.

The promise that larger conglomerates will take their excess profits and pour them back into improved and increased coverage is a phony, trickle-down economics argument. Increased hours of news after a television merger often means nothing more than duplicate stories and repeat newscasts, choked with watered-down national stories instead of truly local reporting. Companies insulating themselves from competitive pressures through mergers and acquisitions of rivals won’t invest more, they’ll just use the profits to pay shareholders or pay down the massive debts they ran up to make the merger happen in the first place.

Broadcast journalism and media is special, insofar as rules limiting ownership, reach, and even content have generally survived constitutional scrutiny till now. The “public interest standard,” based on a spectrum scarcity rationale, has meant that the FCC can to some degree decide who speaks over the nation’s airwaves. Brendan Carr has become Trump’s censorship czar, and whether cynically or fervently or a toxic mixture of both, he’s bent that standard perhaps beyond the breaking point in less than two years of Trump’s second term.

It’s even more difficult, in American jurisprudence and under the First Amendment, to do anything about the size and reach of corporate media companies that don’t use broadcast licenses. Free Press has used antitrust tools to beat media and tech mergers, including but not limited to broadcast deals. A storied line of U.S. Supreme Court cases confirms that undue economic concentration can violate federal antitrust law, even if the commercial “product” is protected by freedom of speech and freedom of the press. And there have been antitrust consent decrees and limits on non-broadcast industry sub-sectors, like film studio control of movie theaters and television network control of TV show production. But calls to strengthen or change our antitrust laws, to account not only for consumer welfare and workers’ rights but also political economy and even news concentration, haven’t resulted in any statutory changes yet. And those changes would be tested politically and constitutionally if and when they’re proposed.

In other words, advocates have tools to prevent undue concentration, but there’s no way to prevent all mergers and set a strict limit on reach. And even if there were, many First Amendment advocates would argue strenuously against such limits, as a cure that is worse than the disease of corporate consolidation—or at least dangerous in different ways.

Because we can’t limit the size and reach of all corporate journalism companies, and we recognize the pitfalls and dangers in trying to do so, Free Press has never been solely focused on striving for a more perfect corporate media. We need a more complete view of the journalistic ecosystem to compensate for the limits of corporate owners, publishers, and speakers.

We’ve written about how journalism is a public good that will be under-produced if it depends solely on an attention economy and sensationalist appeal, especially when the number of online content choices from human creators (and now AI too) is astonishingly large. That puts pressure on traditional cross-subsidies for news by advertising-supported television and print companies. And that prompts harmful calls to move money away from extractive tech platforms right back to the hedge funds and corporate conglomerates running the country’s largest newspapers and TV station groups. Free Press Action opposes these kinds of bills at the federal and state level too.

It’s also readily apparent that “if it bleeds, it leads” local news was never healthiest for the local communities doing the bleeding, and that a focus on the crime beat and other fear-mongering to get eyeballs on the nightly newscast perpetuates racism but doesn’t produce the kind of civic information people need.

That’s why Free Press has always seen public media as a key complement to corporate outlets. Communities benefit from having a wide range of community-centered, non-commercial, and non-profit newsrooms, with at least the potential for government funding. Public money is not anathema to a free press, so long as there’s a firewall between the legislative decisions on such funding and the editorial decisions made by its recipients. An ecosystem that includes robust public media improves the quality and amount of accountability journalism produced.

It’s no accident that an authoritarian Trump administration finished the job started decades ago by Republican lawmakers to zero out federal funding for public broadcasting. Free Press fought that rescission. More than PBS, NPR, and the largest non-commercial stations, those cuts hurt stations serving less densely populated, less privileged, and less affluent communities, as well as independent filmmakers and documentarians whose work finds a home on public media. Yet the prior Corporation for Public Broadcasting was never enough. We need to reimagine public media, to make it more decentralized, truly local, and resilient to political funding decisions.

That doesn’t mean taking government funding out of the equation, and forcing non-commercial stations to rely solely on “underwriting” or charity from well-to-do donors. It means projects like the New Jersey Civic Info Consortium that Free Press helped conceive and create. These kinds of models are gaining momentum in other states too. The idea is to gather public money from general treasury revenues or dedicated tax and funding streams, then administer newsroom grants independently to foster the production of civic information and responsive journalism.

There’s no silver bullet or single answer to preserving quality journalism against the dangers of corporate consolidation and government censorship. But public dollars drawn from diverse sources and administered independently can fund non-commercial journalism by and for the people in communities never fully served by corporate media outlets.

The amicus brief argues that the press has, for over a century, fulfilled a crucial role by reporting on newsworthy events from within the White House on behalf of the American people, and that the president's decision to ban news organizations from the White House based on the viewpoints expressed in their reporting violates the First Amendment.

Status: On September 24, 2026, the district court granted the plaintiffs' motion for a temporary restraining order, requiring the government to restore the plaintiffs' access to the White House.

One of the most common refrains about the federal Freedom of Information Act (“FOIA”) within the requesting community is that the statute feels broken. Even before the changes that have occurred under the current administration, agency FOIA programs were understaffed and underfunded. There has been a trend toward less disclosure and greater secrecy that transcends party lines. And apart from abuse of exemptions, agencies have long sought to erect extra-statutory procedural obstacles like sensitive review and equities-based consultations, or creative schemes such as “still interested” letters and administrative closure.

Congress has not been oblivious to these developments. The FOIA Improvement Act of 2016, for example, was designed to ameliorate many of the problems requesters face today. The Act codified a foreseeable-harm standard and twenty-five year “sunset” rule for the deliberative-process privilege. It introduced a “rule of three” to require affirmative disclosure of frequently requested records in online “reading rooms.” Fee limitations based on the failure to follow the statute’s deadlines were intended to incentivize faster processing. Yet, despite the merit of those changes, they have proven inadequate. A decade later, in the face of a record-breaking number of incoming requests, FOIA hardly seems fixed.

For some requesters, litigation is the only way out of this mess. Congress tasked the courts with enforcing agencies’ disclosure obligations. But, in practice, judicial review falls short of Congress’s design. As I have explained elsewhere, in a proposal for a dedicated Article III “FOIA Court,” “the volume of FOIA litigation nationwide has outpaced the ability of federal courts to deal with those cases in a timely manner.” FOIA suits often fail to receive the attention they deserve. More troublingly, a certain functionalism seems to prevail among jurists. Judges often resolve cases based primarily on uncritical review of agency declarations, with limited adversarial testing. Judicial review is plagued by policy concerns, information gaps, and doctrinal ambiguity.

We need to restore the independent judicial role that FOIA promises to the public. FOIA’s shortcomings are not the result of formal Chevron-style deference. The statute expressly prescribes de novo review and, for the most part, judges review legal questions in that manner. FOIA’s judicial-review problem instead arises from a functional deference driven by jurisdictional and remedial uncertainty, the anomalous procedural architecture of FOIA litigation, and atextual judicial doctrines. Congress needs to address these failures together, through both corrective clarifications of the statutory text and substantive reforms that improve the litigation process.

Rigorous judicial review would not only provide a robust check on agencies but also offer relief to aggrieved requesters. It would positively influence FOIA processing more broadly, too. Although only a small number of requests end up in court, caselaw developments and litigation practices heavily influence FOIA processing at the administrative level. Everyone benefits when courts are doing their job.

Clarifying Subject-Matter Jurisdiction

As the Supreme Court has explained, “without jurisdiction a court cannot proceed at all in any cause.” FOIA, for instance, provides that a federal court “has jurisdiction to enjoin [an] agency from withholding agency records.” Frustratingly, some agencies argue this language implicates the court’s authority to hear a case in the first instance. But that interpretation improperly transforms the elements of a FOIA claim—an allegation “an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records’”—into a set of jurisdictional prerequisites.

This confused position, if widely adopted, would have serious implications. At the least, it requires a requester to prove the merits of a claim at the pleading stage, thus reversing the burden placed on an agency to sustain its action. That is problematic for two reasons. First, because it contradicts the well-established principle that “[t]he burden is on the agency to demonstrate, not the requester to disprove,” that the records at issue are not subject to FOIA or have not been improperly withheld. And second, because most requesters, as a practical matter, have no access to the facts needed to prove or disprove the elements of either their claim or the agency’s affirmative defenses. The government holds all the cards. (We will return to this problem of “informational asymmetry” in a moment.)

Although three circuits have rejected this jurisdictional argument, the Department of Justice continues to advance it to the detriment of requesters. Providing clarity on jurisdiction—and putting an end to the government’s game of shifting evidentiary burdens to requesters at the complaint stage—is essential for making sure FOIA litigation functions as Congress intended.

Explicating Remedial Authority

A right of access without an effective remedy for noncompliance is meaningless. Although FOIA authorizes the courts to “order . . . production” and “enjoin . . . withholding[s],” contemporary cases frequently raise broader remedial questions, which are construed as constructive withholdings to fit within this textual scheme. This is particularly true with the allegations underlying so-called policy-or-practice claims, which depend on the notion that “FOIA imposes no limits on courts’ equitable powers in enforcing its terms.” It is also true with claims involving FOIA’s affirmative-disclosure requirements.

As to the latter, courts generally agree they can hear claims over an agency’s failure to publish records in the Federal Register or post them in an online “reading room.” But at least one court of appeals has determined it cannot provide common-sense relief after concluding an agency has neglected its affirmative-disclosure obligations. That is, instead of entering an injunctive order that requires an agency to comply with its reading-room duties, the U.S. Court of Appeals for the District of Columbia Circuit has stated the available relief is limited to enjoining the agency, even prospectively, to producing records merely to the prevailing plaintiff. The argument for limiting the remedy in this way is that a more general publication order would go beyond curing an individual plaintiff’s informational injury. Two other circuits have found that position unpersuasive. 

At least one circuit judge, in concurrence, has cast doubt on the validity of policy-or-practice claims altogether, thereby opening the door to further erosion of courts’ remedial authority and the diversity of claims the statute envisions. Admittedly, the policy-or-practice theory is an odd outgrowth of a jurisprudential mootness exception that finds little purchase in the text of FOIA itself. But the theory is well-established and, more than anything, this shortcoming counsels in favor of Congress codifying such a claim to prevent its outright rejection by the courts. 

The government has also sought to leverage remedial authority against requesters, arguing that FOIA supplements a court’s inherent equitable power to enter “clawback” orders forcing requesters to return or destroy public records that an agency maintains were inadvertently disclosed. The D.C. Circuit has largely rejected the availability of “clawback”—albeit without addressing lurking First Amendment objections—yet the government is attempting to force the issue again.

Ultimately, Congress must carefully spell out a court’s remedial authority and the available causes of action a requester may bring under FOIA. By providing this textual clarity, Congress would reduce collateral disputes while reemphasizing that courts are meant to function as the “enforcement arm of the statute,” fashioning such relief as needed to fulfill the law’s promise of openness and transparency.

Restoring Meaningful De Novo Review

FOIA’s de novo standard is one of its most important features. Congress understood that agencies have institutional incentives to withhold embarrassing, inconvenient, or sensitive information. Hence the need for independent review. Unfortunately, many courts are not holding agencies to account. They have accepted agency efforts to “circumvent[]” de novo review by engaging in various types of “deference conservation,” especially in cases implicating national security or law enforcement matters.

This “deference” extends beyond legal questions—or the meaning of statutory terms, including the scope of FOIA’s exemptions—to factual matters or the application of law to facts. Yet these are the situations in which a fresh look by a judge would be most appropriate under FOIA. In one older district court case, Chemical Manufacturers Ass’n v. CPSC—which the government continues to cite in contemporary FOIA litigation—a judge decided he owed “considerable deference to the [agency’s] judgment as to what constitutes . . . ‘part of the agency give-and-take’—of the deliberative process,” at least so long as decision-making was still ongoing. That kind of solicitude for an agency’s evaluation of “what confidentiality is needed”—a kind of epistemic deference that relies on an agency’s supposed expertise—seemingly veers quite far from de novo review.

As others have explained, deviation from the de novo standard is also found in a court’s uncritical acceptance of declarations and Vaughn indices, as well as its reliance on substantive or procedural interpretations of FOIA that are structurally oriented toward affirming the government’s position. This problem of procedural deference extends to judicial doctrines like the presumptions of “good faith” and “regularity,” and the D.C. Circuit’s more controversial presumption of compliance with FOIA’s duty to segregate non-exempt material from otherwise exempt records.

Although informal deference—including the practice of allowing agencies repeated opportunities to supplement the evidentiary record with multiple rounds of summary judgment—may seem reasonable to some, disregard for the standard set by Congress has transformed much of FOIA litigation into a sort of box-checking routine in which attorneys and judges “focus[] on a dispute about the adequacy of the [agency’s] Vaughn index, rather than a dispute about the merits of the exemption claims themselves.” It is also unclear whether the practical erosion of de novo review can persist within the new “Loper Bright interpretive paradigm” of administrative law, with its emphasis on the role of independent judicial judgment. In any event, Congress needs to reinforce and empower judges to independently verify an agency’s factual claims whenever a requester raises genuine questions about search adequacy, exemption use, segregability, delay, or systemic noncompliance with the statute.

Accounting for Information Asymmetry

As the D.C. Circuit has explained, the “unique evidentiary configuration” of “the typical FOIA case ‘distorts the traditional adversarial nature of our legal system’s form of dispute resolution.’” Requesters face an “asymmetrical distribution of knowledge” in challenging agency action because “the agency alone possesses, reviews, discloses, and withholds the subject matter of the request.” Yet that “nearly impregnable defensive position” depends on the agency’s ability to meet its burden “to sustain its action.” But a nominal burden on the agency is not enough. Basic principles of fairness require agency arguments to be subject to genuine adversarial testing. The unavailability of discovery in most cases, total absence of an administrative record, and selective application of the federal rules of procedure and evidence frustrate an equitable playing field.

Congress should adopt procedures that reduce this imbalance. It could require agencies to proffer more detailed declarations, strengthen Vaughn index requirements, authorize discovery when there is a material factual dispute, encourage the use of FOIA trials, reinforce in camera review, and make clear that agencies bear a meaningful burden to justify the reasonableness of their searches, withholdings, foreseeable-harm determinations, and segregability efforts.

Conclusion

FOIA is often considered an administrative problem. Agencies lack resources, backlogs continue to grow, and requesters face interminable delays. Those concerns are real, but they do not fully account for the statute’s declining effectiveness. At its core, FOIA enshrines a judicially enforceable right of access. Congress vested federal courts with responsibility for independently evaluating agency action under FOIA. Decades of litigation and institutional cultural shifts have eroded that design. The result is a system in which courts too often validate agency secrecy rather than engaging in true independent judgment with an eye toward openness. Congress should act to restore the judiciary to the role it envisioned.

But it is not just requesters who register high levels of frustration. As the number of requests increases almost exponentially year over year and the volume of records created and maintained by agencies balloons, the resources agencies are given—both human and technological—perennially fall far short of what is needed. On one side, FOIA offices struggle to communicate with requesters effectively even when communication would be mutually beneficial. And on the other side, those same offices face barriers in securing the cooperation of agency program officials in other units to search for and produce responsive records. Agency officials cite the near impossibility of the task at hand, and having been set up to fail, FOIA compliance contributes to a public perception of government incompetence.

In an attempt to support agencies in their FOIA processing, tracking, referring, communicating, and more, private companies have long offered various purported solutions. The leading product, FOIAXpress, has been used by many agencies for more than two decades, but competitors have cropped up like NextRequest and Armedia. Without doubt, these private companies are innovating in the FOIA processing space, including by trying to integrate across non-FOIA staff and by harnessing the power of artificial intelligence. Still, though, private products are adopted piecemeal, agency-by-agency, and do not integrate across the government. Moreover, the nature of private products has exposed government to potential security breaches. And finally, these products are expensive and offer many add-ons and customization options, making even the very same products function differently across agencies. For requesters, this means that each agency still has a bespoke requesting process.

At times, both Congress and the administration have recognized the need for greater ownership and consistency of technology in a centralized location in government. In the FOIA Improvement Act of 2016, Congress required the Office of Management and Budget to “ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records… to any agency from a single website.”

While this had the promise of taking a step in the direction of improving FOIA infrastructure, the implementation has proven wholly inadequate. FOIA.gov, the government’s attempt at moving toward a FOIA portal, acts mainly as a redirect site; that is, it provides a centralized area to find a link to each agency’s request submissions process. It does not, itself, allow a single submission site.

This is not the first attempt that has gone awry. The EPA spearheaded an earlier effort, FOIAonline.gov, a portal system that allowed other agencies to opt in to using it for request submissions on a single site and was used by twenty-two agencies at its height. But after the EPA experienced high costs in maintaining the system, it was decommissioned and shut down entirely in 2023.

Even at their zenith, none of these efforts have been adequately ambitious to produce the kinds of gains that real technology infrastructure might offer. Other countries have vastly outpaced us in this regard, and their models are instructive in the possible efficiency gains of technology platforms that serve the administrative needs of FOI professionals and the public alike.

During the height of Mexico’s transparency regime, Mexico’s then-extant Information Commission created a National Transparency Platform, an integrated portal system that out-imagines anything we have tried. As a basic matter, it allowed requesters to make a request to any governmental body at any level of government from a single portal, or even to make a request to multiple agencies at once. It also allowed the requester to log in and see all past requests made, with deadlines for responses clearly indicated, as well as all subsequent communication and any eventually released records. The portal served as a repository for all released records which (absent individual privacy concerns) were also posted publicly for anyone to search and review. All records required to be made affirmatively available were likewise housed on the portal.

But where it really shone was on the backend. The portal served as the internal processing management system for government entities. Each agency unit that processed requests (the equivalent of a FOIA office) could see all the pending requests and deadlines, could refer the request internally to the program or component of the agency that was likely to have responsive records—each of which had a designated contact for handling FOI requests—and could set an internal deadline for that program to respond to the FOIA office. The contact point in the program office, likewise, had their own login that provided a list of all referred requests pending and allowed them to build the record on their end.

Finally, the National Transparency Portal also facilitated communication between the agencies and the information commission; once the agency response was registered, it allowed requesters, with the click of a button and a sentence-or-two explanation, to administratively appeal the response to the commission. The commission then had access to the full administrative record of what happened prior to the appeal and could receive additional documentation through the portal, as well as request additional information from the agencies. At base, therefore, the portal looked different to each actor who had a touchpoint on a request by virtue of their login. It clearly managed that individuals’ workflow and facilitated retention of a full record of what happened.

Mexico is far from the only country to have developed such a deceptively simple sounding system, but one that radically transforms the FOI space. Brazil, for example, has a very similar one-stop-shopping portal system for their FOI space, as do Paraguay and Norway.

The U.S. needs a true FOIA portal. A real portal would create the infrastructure that would facilitate the possibility of something akin to full compliance with FOIA obligations. It would supplant a piecemeal system with a system designed for this purpose, built in house, maintained by government computer engineers, and consistent across agencies. It would streamline the workflow inside agencies, make clear who has the responsibility for the request at each stage, and create priorities for work based on deadlines. It would provide the public with one-stop-shopping for government information and lower the barriers to use by ordinary citizens. And it could create efficiencies for agencies, which would no longer need to invest FOIA budgets in procurement of third-party products for FOIA solutions.

The most exciting part of a true portal, however, is the nearly endless list of possibilities beyond improving the current request-and-response compliance rate. For example, a portal could facilitate release-to-one-release-to-all, a widely celebrated concept that once a record is released under FOIA it should be available publicly for anyone to access. The DOJ has supported the idea in pilot version previously, but it never became a reality. Indeed, implementing a release-to-one-release-to-all system would obviate the need for FOIA’s current requirement that agencies release publicly any record requested three or more times, a requirement agencies have found extremely difficult to implement. In fact, much more broadly, a portal creates an opportunity for meaningful affirmative disclosure regimes in which records are searchable government-wide and agencies have checklists of disclosure obligations with which they must comply.

Exemption application could be improved through the use of a portal as well. For example, a portal could collect the body of past agency decisions—both at the initial and the administrative appeal level—as well as adjudicated case law in one place. It also would contain all previously released records—whether at the administrative level or in response to litigation—thereby making plain when information is already public on a particular topic and facilitating a determination that further release would not harm a protected interest. Easy access to more definitive answers on the application of exemptions or other matters under the law might improve agency compliance in future cases.

A portal might also be used to facilitate data analysis, auditing, and other programmatic evaluation of FOIA offices. Patterns of violations—whether delay, overwithholding, or failure to engage in affirmative disclosure—could benefit from systematic solutions, and a portal could be used to facilitate identification of areas ripe for improvement.

Even more broadly, a portal could facilitate many of the other types of FOIA reforms that have been considered within the FOIA community. For example, it might allow tracking the personal responsibility attached to FOIA violations to particular employees in a way that could sanction flagrant noncompliance. It could facilitate improved judicial review by creating a full administrative record for the court and permitting easier in camera review of records. It could link to declassification efforts by the National Declassification Center or be integrated as a tool hosted by the Archives into the NDC’s work. It could be integrated into artificial intelligence solutions; imagine, for example, an AI tool that combed through agency records and identified records that are likely of interest to the public and can be affirmatively disclosed. And it may hold the potential for many more uses we could tailor the portal to as it developed over time. FOIA needs a portal now.

“Journalists covering the Pentagon play a crucial role in keeping Americans informed about the actions that the U.S. military and its leaders take in our name,” said Jake Karr, staff attorney at the Knight Institute. “These new restrictions represent a transparent attempt to cow independent, fact-based reporting and convert the Pentagon press corps into something more like a propaganda machine.”

Today’s brief argues that the government’s unprecedented restrictions violate the First Amendment’s public forum doctrine because they are impermissibly motivated by a desire to suppress critical journalism and because they undermine the very purpose of allowing journalists to access the Pentagon in the first place—to facilitate accurate and timely reporting on matters of war and peace that informs and serves the public. It urges the court to roll back these restrictions and restore the Pentagon press corps’ ability to gather and report the news without fear or favor.

“The administration is trying to prevent journalists from publishing reports about the military that it simply doesn’t like,” said Katie Fallow, deputy litigation director at the Knight Institute. “Especially in times of war, the public needs accurate, timely, and independently sourced information that only a free press can provide.”

The Department of Defense issued the interim policy that is the focus of this appeal following a ruling by the district court that the original policy restricting reporters’ access to the Pentagon was unconstitutional; the government has not challenged that ruling.

The Knight Institute filed a similar amicus brief earlier this month in a related case also challenging the interim policy.

Read today’s amicus brief here. 

Read more about the cases—New York Times v. Department of Defense (NYT I and II)—here. 

Lawyers on the case include Katie Fallow, Jake Karr, Jameel Jaffer, and Alex Abdo for the Knight First Amendment Institute.

Today, the Knight Institute also announced that it will support CNN, MS NOW, and Politico in their lawsuit against the Trump administration’s White House press ban. Read more here.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

The following can be attributed to Jameel Jaffer, executive director, Knight First Amendment Institute at Columbia University

“We’re glad to see that these news organizations are suing. The president’s decision to bar them from the White House for the content of their reporting is a flagrant violation of the First Amendment. It’s an attack both on press freedom and the public’s right to independent information about the government. We will support these news organizations in court.”

The Knight Institute has supported the Associated Press in its challenge to its exclusion from the White House, filing three separate amicus briefs over a period of 18 months. The Institute has also supported The New York Times in its challenge to restrictions on access to the Pentagon. Earlier, the Institute successfully sued President Trump over his blocking of critics from his Twitter account, which the Institute argued was a “public forum” for First Amendment purposes. 

The following can be attributed to Jameel Jaffer, executive director, Knight First Amendment Institute at Columbia University

“The First Amendment prohibits the president from punishing journalists because he doesn’t like their coverage, just as it prohibits him from punishing universities because he doesn’t like the courses they offer, or from punishing law firms because he doesn’t like the clients they represent. With so many courts having ruled against him on exactly this point, you’d think President Trump would have learned this lesson by now. If President Trump means to expel these news organizations from the White House press pool, his action is doubly unconstitutional because the press pool is a ‘public forum’ under the First Amendment, which means the president can’t exclude journalists from it on the basis of their viewpoints.”

For more information, contact: Lorraine Kenny, lorrraine.kenny@knightcolumbia.org. 

These twin crises have plagued—and been exploited by—Democratic and Republican administrations alike, demonstrating that the challenge is not partisan, but structural.

It is past time for reform. Here are four ways to start.

1. Congress must stop deferring to the executive branch on classification

One of the classification system’s shortcomings is that it is governed almost exclusively by executive order. (Nuclear weapons information governed by the Atomic Energy Act of 1954 remains the most notable exception.) Decades of overclassification show that leaving secrecy rules solely to executive discretion leads to too many secrets being created, with too few opportunities for oversight by the judicial or legislative branches.

Nearly three decades ago, the bipartisan Moynihan Commission on Protecting and Reducing Government Secrecy studied this very problem. It found that the “culture of secrecy” was so deeply entrenched in the executive branch that Congress must enact statutory reform and pass legislation mandating that records only be classified if there was a demonstrable need, along with other improvements.

That recommendation was largely ignored, and the culture of secrecy remains deeply embedded within agencies. Congress must finally take up the Moynihan Commission’s recommendation to set classification rules.

2. Standardizing definitions and incentivizing individual accountability

Most classification decisions are subjective. It is not unusual for the State Department to approve a document for declassification, only to be overruled by the CIA, which insists the material must remain secret. This is caused by a lack of objective standards across (and within) agencies that leads to reflexive secrecy as a matter of routine.

Congress can fix this in two ways:

• Clearly define classification standards in statute: Legislation should establish an interagency task force, led by the Information Security Oversight Office (ISOO) at the National Archives and Records Administration (NARA), charged with strictly defining the vague phrase "damage to the national security." The Classification Reform for Transparency Act, a bipartisan bill introduced in 2024, introduced something similar, and its proposals should be built upon.
• Incentivize leadership and penalize abuse: Legislation should compel agency leadership to proactively fix classification. This could include imposing financial penalties to be incurred by senior leadership for agencies that habitually overclassify information, and could be coupled with a financial award program for agency personnel who successfully lodge good-faith classification challenges.

3. Quantify the size and cost of the problem, then impose a 10% "declassification tax"

The biggest practical hurdle in reining in overclassification is that there are no reliable metrics on the size and cost of the classification system.

The numbers problem is so bad that the last fiscal year for which we have data on the number of original and derivative classification decisions is 2017, when ISOO reported 58,501 original classification decisions and 49 million derivative classification decisions. Since then, ISOO has not reported government-wide classification decisions because agency data was notoriously poor and inconsistent, making the data effectively useless and leaving policymakers without a metric to evaluate secrecy reform ever since.

New legislation should institute:

• Mandatory audits and standardized metrics: Agencies that classify information should adopt standardized data tracking for original and derivative classification decisions, including accounting for the explosion of derivative decisions generated by new technologies on classified networks, to be reported annually in public-facing audits. This, coupled with a clearly defined statutory basis for classification, should improve classification decisions off the board.
• The 10% declassification tax: Part of this audit must address the ever-growing costs of classification. Reforms should require every agency to calculate its total annual classification costs—accounting for the costs of security clearances, SCIF maintenance, classified IT infrastructure, such as SIPRNet and JWICS, and other relevant metrics. Once tabulated, 10% of that publicly-reported total should be invested in agencies’ declassification programs. This idea has been broached before, and it should be put into law.

4. Empower NARA to declassify other agency records and double its budget

Legislation must also address the primary bottleneck in historical declassification: the endless interagency referral loop. Currently, these releases stall for decades in large part because NARA does not have the authority to declassify other agency records in its possession and must refer files back to the originating agency, which in turn may refer portions of those requests to numerous other agencies, which must all conduct their own, time-consuming reviews.

To fix this Congress must:

• Grant the Archivist of the United States and the National Declassification Center the authority to declassify records in NARA's custody that are 25 years or older. By stripping originating agencies of their power to keep historical files secret, the statute will eliminate the referral loophole that keeps history hidden.
• Double NARA's Budget. NARA is already woefully underfunded. For the agency and its components like ISOO and the NDC to be successful, it needs an influx of funds for staff and to acquire modern technology capable of working with all of the different kinds of classified records that intelligence and defense agencies possess and transfer to it. This will have the added benefit of boosting NARA’s other mandates, including ensuring that agencies are properly creating and preserving the records they are required to retain.

Critics of congressional involvement in classification will point to the disaster that was the Kyl-Lott Amendments of the late 1990s, which made declassification of historical nuclear-related documents even more cumbersome. While it's clear the executive branch needs legislative guidance to improve overclassification, any new legislation must learn from these amendments’ mistakes and prioritize clear, quantifiable standards over vague and retroactive mandates.

Finally, classification reform is not a stand-alone issue. It overlaps with records management and transparency requirements, and fixing one issue while ignoring the others will ultimately fail. For example, Congress must also account for senior officials who willfully destroy records to keep them from the public and consider punitive measures to deter this growing threat. To do so, it could make intentional records destruction (or overclassification) a disqualifying factor for running for public office or have such offenses result in the immediate revocation of security clearances.

Reducing overclassification and restoring meaningful oversight of classification decisions requires moving beyond executive orders. Codifying metrics, establishing a declassification tax, narrowing the definitions of damage to national security, and granting NARA authority to end forever secrets, will shrink the universe of government secrets and restore public trust.

“Today’s decision leaves Americans’ most sensitive information open to search at the border without any suspicion at all,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “Our phones hold our private thoughts and associations, photographs of our family and friends, and a log of our nearly every movement. The First Amendment should require the government to get a warrant before searching them. We’re disappointed the court declined to recognize that.”

Today’s decision involves a criminal case, United States v. Alisigwe, in which the government relied on evidence obtained from two warrantless searches of the defendant’s cell phone at the border. In November 2023, the district court denied the defendant’s motion to suppress the evidence. The Knight Institute and RCFP’s amicus brief before the Second Circuit pointed to documents obtained by the Knight Institute through FOIA litigation in Knight First Amendment Institute v. Dep’t of Homeland Security and also discussed the burdens these searches place on journalists, whose electronic devices contain sensitive newsgathering information, including the names of confidential sources. The brief argued that the border-search exception to the Fourth Amendment’s warrant requirement does not apply to searches of electronic devices and urged the court to conclude that the First and Fourth Amendments require the government to obtain a warrant before searching a cellphone at the border. The Second Circuit rejected these arguments in today’s ruling.

In March 2025, the Knight Institute’s Wilkens argued before the Second Circuit. 

Read today’s decision here.

Read more about the lawsuit, United States v. Alisigwe, here.

Lawyers on the case include Scott Wilkens, Alex Abdo, and Jameel Jaffer of the Knight First Amendment Institute.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

“Government officials are free to speak, persuade, inform the public, and enforce the law. What they cannot do is use threats or regulatory power to coerce private intermediaries into suppressing protected speech,” said Nadine Farid Johnson, policy director at the Knight First Amendment Institute. “The JAWBONE Act would create an important mechanism for accountability when government jawboning crosses the constitutional line. We welcome the committee’s effort and urge the Senate to pass this legislation quickly.”

The bill would establish a federal cause of action against federal agencies and officials who unlawfully coerce or attempt to coerce private  intermediaries into suppressing protected speech. It would also establish new transparency measures, including standards for logging covered communications between federal officials and private intermediaries and a public portal for certain covered communications.

The Knight Institute has long warned that government jawboning can distort public discourse and evade meaningful judicial review. When officials pressure social media platforms, broadcasters, or other intermediaries to suppress protected speech, the burden often falls on the speakers and listeners who are excluded from public discourse or whose access to information is restricted. At the same time, the Institute has emphasized that not every communication between the government and private intermediaries is coercive. Government officials must remain free to share information, advocate their views, respond to emergencies, and enforce existing law consistent with the First Amendment. The JAWBONE Act recognizes this distinction by targeting coercive efforts to induce content actions while preserving space for lawful government communication.

Read the JAWBONE Act as introduced here.

Read more about the Knight Institute’s “Jawboning and the First Amendment” initiative here.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

Bill was imposing—all bravado and 250 pounds. He was also a populist. He promised Chicagoans an end to corruption and the high cost of living. He railed against “organized forces” and attacked “the public press” that wielded “willful misrepresentation.”

Bill did not like the Chicago Tribune. The Tribune, he told a crowd, was a “selfish newspaper” that defamed the “most orderly and law-abiding of all the big cities on earth.” For the papers he liked, they rendered “loyal service.”

So, Bill was a lot of things. He was also a bought man—Al Capone’s bought man. Bill drove out honest men. He filled government ranks with criminals. And he used his position to enrich himself. Some $20 million in today’s dollars was found stuffed in safe deposit boxes.

In life, Bill did what thin-skinned men in power do: ordered his lawyers—well, the City’s lawyers—to sue his critics. This included the Tribune in what became known as the Ten Million Dollar Libel Suit.

For everything that was bad about Bill—and plenty was bad—his fight against the Tribune was good because it created some very good law.

The facts of the underlying case are not important. What is important is that Cook County Judge Harry M. Fisher, a Lithuanian immigrant, threw the case out, finding that “no cause of action exists” like that asserted by Bill.

But for the press, Judge Fisher wrote, “the acts of public benefactors would go unnoticed, impostors would continue undismayed, and public office would be the rich reward of the unscrupulous demagogue.”

He would not let the government interfere with this function. Allowing suits for libel on government, he feared, would chill the reporting of truth.

“This action,” he wrote, “is not in harmony with the genius, spirit and objects of our institutions. It does not belong to our day. It fits in rather with the genius of the rulers who conceived law not in the purity of love for justice, but in the lustful passion for undisturbed power.”

The Illinois Supreme Court affirmed, holding that “prosecutions for libel on government [had no] place in the American system of jurisprudence.” Forty years later, the U.S. Supreme Court adopted that principle as its own in New York Times v. Sullivan.

Today, devotion to that principle is being tested.

While lawsuits for libels on the government remain verboten, libel lawsuits by high-ranking government officials based on reporting about their official conduct are not. Lawsuits like those brought by President Donald Trump and FBI Director Kash Patel are proof of this: file a lawsuit in a personal capacity, avoid the principle.

The evil is the same, though. If such lawsuits are tolerated, officials will nevertheless have what Judge Fisher called “a weapon to be held over the head of every one who dares print or speak unfavorably of the men in power.” We will get an officialdom “unrestrained by fear of publicity,” doing harm Judge Fisher thought incalculable.

Congress can prevent this from happening. The solution is simple: grant citizens an immunity that neutralizes attempts by high-ranking government officials to use state tort law as a weapon to intimidate their critics and line their pockets.

That immunity would be analogous to constitutional and statutory protections already afforded to public officials though denied to the public. As the Illinois Supreme Court held, “the individual citizen must be given a like privilege when he is acting in his sovereign capacity.”

This conclusion—especially as it applies to the executive branch—is bolstered by the Supreme Court’s embrace of the unitary executive theory, as First Amendment lawyers like David Korzenik have observed. To paraphrase the Court, the president is the executive branch. And his officers are his envoys. That being so, suits by them over statements about their public selves are the functional equivalent of suits by the executive branch. (The point is underscored by Mr. Trump’s personal lawyers now serving in government.)

A law providing an absolute immunity to citizens to criticize high-ranking executive branch officials has precedent elsewhere too. Justices Black and Douglas maintained that the First Amendment granted “the press an absolute immunity for criticism of the way public officials do their public duty.” Justice Goldberg agreed “despite the harm which may flow from excesses and abuses” of that immunity.

One should not be ignorant of those harms. Bad actors could use this immunity as a shield behind which they could launch disinformation campaigns against public officials. This could have serious consequences, including polluting public discourse. This assumes, however, that bad actors are already deterred by defamation law from waging these campaigns today. That is far from clear considering the glut of disinformation in recent years.

More to the point, defamation law’s purpose is not to protect healthy political discourse—it is to protect reputation, which has a real cost on public discourse. As Professor Lili Levi has noted, “[d]efamation lawsuits cannot credibly stem the systemic tide of disinformation or predictably correct reputational harm, but they do threaten powerful chilling effects for the press, super-sized by our current sociohistorical context.”

An immunity also addresses a central problem with the actual malice standard: vindicating it can require protracted litigation. Winning on actual malice after discovery or even a motion to dismiss or two may be pyrrhic given the exorbitant costs of litigation today. This rewards litigants who use the fact of litigation—not a judgment—as the punishment.

Congress should establish this immunity by adopting The Defending Expression Against Threats of Executive Retaliation Act (the DETER Act) for suits by executive branch officials that target speech made in interstate commerce. See the draft act here.

First, narrowly tailor the law to the class of individuals most likely to be bad actors and who wield and can leverage substantial government power: high-ranking officials as defined by the top three levels of the Executive Schedule. This would cover the president through the heads of mid-size federal agencies, like the Federal Communications Commission, among other officials.

Second, define the covered speech broadly to ensure that the act’s purpose is attained. The proposed act would cover speech not only about official conduct but also about a covered official’s “fitness or qualifications” for office. This definition should be interpreted broadly.

Third, give the act teeth by authorizing an early motion to dismiss on the basis of immunity from suit. The law could also make clear that falsity and state of mind are irrelevant—a necessary tradeoff to ensure the law’s purpose is achieved. In Judge Fisher’s words, “It is not the right to speak the truth, but the protection of the right to speak, that is here in the balance.”

Fourth, stuff the act with procedural protections. Freeze discovery upon the filing of a motion and provide for immediate appeals. Give defendants sued in state court the choice to remove the case to federal court (much like government officials can under the Westfall Act). Finally, adopt mandatory fee-shifting in favor of defendants.

Had Big Bill made it to the White House (he had ambitions, after all), he would have hated the DETER Act. See, Bill understood the stakes; he simply had them backwards. He denounced his critics as a “conspiracy against popular government,” all while claiming to speak for “the express will of the people.” But the criticism he wanted to silence was not the conspiracy against popular government—it was popular government. 

The Court stated this truth plainly in Sullivan: speech about government officials “is more than self-expression; it is the essence of self-government.” When a high-ranking official sues over criticism of how he did his job, he sues as the government in all but name—and the government, as Judge Fisher taught many years ago, has no such claim to assert. 

The Institute’s brief argues that the government’s new restrictions violate the First Amendment’s public forum doctrine because they are impermissibly motivated by a desire to suppress critical journalism and because they undermine the very purpose of allowing journalists to access the Pentagon in the first place—to facilitate accurate and timely reporting on matters of war and peace that informs and serves the public.

Status: Briefing ongoing in both appeals. Oral arguments scheduled for November 16, 2026.

Case Information: N.Y. Times Co. v. Dep’t of Def., No. 26-5113 (D.C. Cir.) (NYT I); N.Y. Times Co. v. Dep’t of Def., No. 26-5253 (D.C. Cir.) (NYT II)

But the tragic truth is that the case was probably doomed from the start—not because there was insufficient evidence to support the men’s claims, but because since the September 2001 terrorist attacks the federal courts have expanded a slew of jurisdictional, remedial, and procedural doctrines that together all but guarantee that human rights cases implicating national security are dismissed without regard to the evidence. The Abu Ghraib case traveled a twisted path through the justice system, coming before the appeals court a remarkable six times over a period of 18 years. During that time, the courts confronted many other cases involving human rights abuses committed by U.S. intelligence agencies, military personnel, or government contractors, and they relied on these doctrines to dismiss almost all of them. The Abu Ghraib case just took longer to meet the same fate.
 
To look back on these cases now, a quarter-century into what George W. Bush labeled the “war on terror,” is to survey a bleak and disheartening landscape of judicial abdication, with the courts almost invariably placing national security policies beyond the reach of the law and human rights victims outside the sphere of judicial protection. Lawsuits filed by men who were once imprisoned and tortured in the CIA’s black sites were thrown out on the theory that they couldn’t be litigated without the disclosure of state secrets. Challenges to mass surveillance programs were turned away for the same reason, or because the challengers’ inability to prove conclusively that their own communications would be swept up—a near-certainty, given the scope of the programs—meant they lacked standing to sue.

A case concerning the drone killing of U.S. citizens abroad was dismissed on the theory that it raised questions that are the exclusive province of the political branches, and another was rejected on the grounds that the due process clause does not provide a remedy for extrajudicial killings carried out in the service of national security. A slew of other cases involving serious abuses—including another case brought by men once imprisoned at Abu Ghraib—were dismissed after courts decided that the officials should be immune from suit. I litigated some of these cases and became intimately familiar with the diversity of ways in which courts can close their doors to even manifest injustice.

In the first years after 9/11, national security officials and their supporters in the legal academy would sometimes lament the emergence of “lawfare,” by which they meant human rights groups’ use of the courts to contest the lawfulness of national security policy and to force leaders to answer for abuses. They warned that the prospect of liability would deter officials from taking bold action—that it would dissuade them from getting chalk on their cleats, in Michael Hayden’s phrase, or from working the “dark side, if you will,” in Dick Cheney’s even more memorable one. John Yoo, who wrote the Justice Department memos authorizing torture, characterized human rights litigation as “another front” in the war on terror.
 
But anxiety about the possibility that American courts might hold officials accountable for the violation of fundamental legal norms has turned out to be entirely unwarranted. No senior government official has been held liable, criminally or even civilly, for the major rights violations perpetrated as part of the war on terror—not for torture, arbitrary detention, extraordinary rendition, mass surveillance, or extrajudicial killing. Nor have American courts grappled with the human consequences of the government’s policies, or (with very few exceptions) afforded victims an opportunity to confront the people most responsible for them.
 
An important legacy of the war on terror is the court-constructed legal regime that now insulates national security policy from review and shields national security officials from accountability. We can see the implications of it all around us. We can see it in the steady, AI-fueled expansion of government surveillance, in the readiness of ICE agents to fire their weapons in the streets of Minneapolis or Chicago, in the government’s shocking cruelty toward migrants and refugees, and in the murderous airstrikes against supposed drug traffickers in the Caribbean and Eastern Pacific. Government officials now violate the law with impunity, with little more than a wave to national security. Justice Department legal opinions—like the ones that Yoo wrote for the torture program—protect them from criminal prosecution, and the legal doctrines that the courts expanded during the war on terror shield them from civil liability as well.
 
All of this could have unfolded differently, and there were moments when it seemed like it might. After the Bush administration imprisoned an American as an enemy combatant, Justice Sandra Day O’Connor wrote a forceful opinion holding that the Fifth Amendment’s due process clause required that the prisoner be afforded an opportunity to contest his designation before a neutral tribunal. Justices John Paul Stevens and Anthony Kennedy wrote rightfully celebrated opinions affirming the rights of prisoners held at Guantánamo Bay. But it would soon become clear that these opinions were outliers. The Supreme Court took up surprisingly few cases relating to the war on terror, and the ones it took most often yielded new obstacles for human rights claimants and new protections for national security officials.
 
No one should underestimate how difficult it will be to reverse course. Legal reform is arduous and slow in the best circumstances, and the abdications and dismissals of the last quarter century have worn deep precedential grooves that courts are now conditioned to follow. Still, we can’t afford to resign ourselves to the legal regime we have inherited. We have to try to imagine, and then build, a justice system that better serves the values that should be central in our democracy—like due process, accountability, and the rule of law.

We have the blueprints and conceptual resources for this project already. We have them in the many post-9/11 lower court decisions that appeals courts overturned, in the appellate decisions that the Supreme Court reversed, and in innumerable dissents written by judges who forcefully rejected the proposition—implicit in many of the briefs the government has filed over these past 25 years—that the courts should make themselves mere bystanders to injustice.
 
These dissenters were right, of course. Turning a blind eye to so many post-9/11 human rights violations and abuses has not made us safer or stronger or readier or better at the hard business of navigating a complicated world. And for those of us who include in that hard business the obligation to own up to and learn from our mistakes, in many ways it has tied our hands.

On September 9th and 10th, the Knight Institute and Columbia’s Simon and June Li Center for Global Journalism will convene journalists, scholars, lawyers, and activists to explore one of those legacies in particular: The ongoing impact of the War on Terror on democratic rights, including the freedoms of speech and the press.

First Amendment freedoms came under stress from the moment President George W. Bush declared a “War on Terror” and his press secretary warned Americans to “watch what they say.” Pervasive secrecy and censorship hid war crimes, torture, and other grave human rights abuses. Surveillance programs proliferated, from the NYPD’s targeting of New York Muslim communities to digital surveillance operations of unprecedented scope and reach. Anti-terrorism legislation criminalized forms of peaceful speech and association. The press struggled to fulfill its role, and when journalists did report on controversial and covert programs, they did so in the shadow of the Espionage Act, which the government deployed against journalists’ sources and threatened to deploy against journalists themselves. 

But those same First Amendment freedoms nurtured new forms of resistance, solidarity, and even accountability as well. Civil society groups and community organizations mobilized to defend civil liberties and protect targeted minorities. A new generation of journalists responded to the failures of legacy media by building new media tools and institutions in response to the failures, limitations, and blind spots of legacy media.

What does all of this mean for us today? To what extent are we still living the Forever War, and in what ways are we now living in its shadow? How have the suppressions and distortions of the Forever War worked their way into our systems and psyches? Is our system of free expression stronger or weaker now? This symposium will explore these and other questions and assess the lasting significance of the Forever War for First Amendment freedoms and for our democratic institutions and culture. 

The symposium is co-sponsored by the Knight Institute and the Simon and June Li Center for Global Journalism at Columbia Journalism School in partnership with Harper’s Magazine and The Columbia Daily Spectator. 

Reception to follow on September 9.

Lunch will be provided on September 10.

Registration is required.

RSVP for in-person or virtual attendance.

As part of our efforts to combat the Trump administration’s weaponization of its ICC sanctions regime to suppress disfavored speech, the Knight Institute recently helped secure a meaningful victory for Josh Paul, a foreign policy expert and former State Department official. Mr. Paul had been asked to testify as an expert witness in a lawsuit in Canada challenging the Canadian government’s role in exporting military components and technology to Israel during the war in Gaza. But because one of the plaintiffs in the case is the Palestinian human rights organization Al-Haq, which has been sanctioned by the U.S. government, Mr. Paul was aware that offering his expert opinions in the case could expose him to severe criminal and civil penalties. In response to a letter sent by the Knight Institute and cooperating attorney Joseph Pace, the Treasury Department issued what is known as a “license” to Mr. Paul, allowing him to go forward with his participation in the lawsuit, albeit for a limited time and subject to certain conditions. 

Treasury’s license is an important but incomplete victory. Most directly, it enables Mr. Paul to engage in constitutionally protected speech by offering his expert views in the lawsuit. And the license serves as tacit acknowledgement that the U.S. government likely has limited interests in policing such activity. These are notable concessions. The license, however, falls short of what we had requested—public guidance making clear that serving as an independent expert witness at the request of counsel representing a designated entity does not violate U.S. sanctions law, and that no authorization is required before Mr. Paul and others engage in this kind of activity. Treasury’s decision to issue a limited license, instead of guidance disclaiming its authority to regulate this kind of speech, suggests that Treasury believes it has the power to restrict or permit, at its sole discretion, expert testimony in these circumstances. Treasury’s position effectively institutes a prior restraint on speech, implicitly requiring any person who wishes to engage in it to first ask the government for permission.

The license comes in the context of the Trump administration’s sustained campaign to “systematically disable” the ICC and those who assist its efforts to investigate and prosecute U.S. or Israeli citizens for alleged human rights violations. In February 2025, President Trump issued an executive order that imposes sanctions on foreign persons whom the Secretary of State determines “to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute” citizens of the United States or certain U.S. allies, including Israel. The executive order expressly prohibits Americans from providing “services by, to, or for the benefit of any [designated] person,” while making no attempt to define or limit the term “services” or explain what it means for a service to be “by, to, or for the benefit of” a designated entity. These broad and vague prohibitions are backed by serious civil and even criminal penalties.

The U.S. government has subsequently relied on the executive order to sanction numerous groups and individuals. It designated several ICC judges and prosecutors, citing their attempts to investigate and prosecute U.S. and Israeli citizens. It designated Francesca Albanese, an international human rights expert who serves as the U.N. “Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967” because she had “directly engaged” with the ICC, including by recommending that the ICC issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. And it designated Al-Haq and two other prominent Palestinian human rights groups for purportedly aiding the ICC in its efforts to “investigate, arrest, detain, or prosecute Israeli nationals.” The sanctions against Al-Haq and others have had significant consequences for the targets of those designations, cutting them off from critical funding, resources, and infrastructure that originate from U.S. sources. But they have also had a profound impact on the many Americans who wish to engage with those who have been sanctioned—through constitutionally protected speech and association—but who are fearful that doing so could expose them to liability for violating U.S. sanctions law. Indeed, over the past year, the Knight Institute has heard from numerous scholars, journalists, and human rights advocates who have been chilled from exercising their First Amendment rights because they fear that speaking to, hearing from, and collaborating with sanctioned entities could result in serious civil and criminal liability.

Treasury’s license is significant because it permits Mr. Paul to proceed with his plans to assist the Canadian courts with adjudicating a major constitutional case without the fear that he will run afoul of U.S. sanctions law, but more durable protections are necessary to address the significant chilling effect caused by the executive order and the ICC sanctions regime. That is why the Knight Institute has sought to cabin the Treasury Department’s authority to apply its sanctions restrictions expansively to restrict protected speech and association. Scholars, journalists, and human rights advocates should be free to continue their vital work without the looming threat of sanctions enforcement hanging over their heads.

But just as important as the question of what is the question of how.

It is notoriously difficult to get Congress to pass reform on any prominent issue, and the last major press freedom legislation that was signed into law was the SPEECH Act more than 17 years ago, at a time when it was fairly uncontroversial.

In order to get any press freedom legislation passed—especially in an environment where trust in the media is at an all-time low—the press freedom community needs a much more comprehensive and aggressive lobbying strategy that goes well beyond the usual advocacy many organizations are used to.

At Freedom of the Press Foundation, we learned a lot of lessons from the almost-successful push to get the PRESS Act passed in 2024, where we poured almost all of our advocacy efforts into lobbying for that one bill, and I’d like to share them here.

Our biggest takeaway is, as a group, press freedom organizations must do a lot more than sign coalition letters, write an initial endorsement or blog post, and talk to a few friendly staffers.

We need to start a relentless, multipronged effort from the very beginning of the congressional session that does not let up for a moment. This includes:

• Finding co-sponsors on the relevant committees ourselves (via outreach, local op-eds, and local leaders who have personal connections). Bill authors or initial sponsors may not have the motivation, the time, or (believe it or not) the relationships to do this themselves, so it’s up to advocacy groups to do the legwork to find and convince key offices to become sponsors and then make sure their offices follow through to make it official. Local press associations and other state-based organizations are often key to making these pitches.
• Pushing committee chairs to get the bills out of committee quickly. It doesn’t matter if a lot of members support our bill—if it doesn’t get out of committee, then the full chambers won’t vote on it. Targeting relevant committee members as soon as Congress is in session, plus putting a special emphasis on ranking members to make sure a vote happens ASAP, is imperative. The Senate will have to deal with a lot of last-minute nominations and budget issues at the end of each congressional session, so every day our bills sit is a day that is lost.
• Engaging with members of the opposite party (sometimes through intermediaries they will listen to). Here, I’ll use Republicans as an example. We will have to regularly generate talking points that will specifically appeal to their base and the right-wing media they support, work with right-leaning groups to get meetings we can’t, publish op-eds in right-wing media, and pitch conservative radio stations, podcasts, and television shows to talk about the issue. They rely on press freedom too, even if they hate mainstream media, and our talking points must emphasize that.
• Hiring more lobbyists. 501(c)(3)s are often nervous about directly hiring lobbyists because of lobbying limits in the 501(c)(3) rules and potential funder restrictions. But there is not a total ban on lobbying; as long as you disclose it, you’re permitted to spend a modest percentage of your budget on it. It’s also important to emphasize that lobbying on specific issues relevant to your mission is different from “electioneering,” which is banned. (Please consult your lawyer about the specific rules.) We had a lot of success hiring and working with Republican lobbyists aligned with us on the PRESS Act issue. It’s also important to hire not just a general lobbyist, but one with specific contacts in the offices we are most concerned about. Even if they can’t move votes, they can often gather valuable intel that we would not otherwise have access to.
• Doing a comprehensive whip count. Keeping track of the positions of all 535 members of Congress is a chaotic job but also can make all the difference. A comprehensive whip count is also not just marking each representative as Yes/No/Unknown. It’s a list of key staffers, who is engaging and who is not, on what date the member is known to have last weighed in, and a whole host of other information that would be hard for one group to track themselves but is a perfect project for a coalition.
• Doing extra legwork for the staffers themselves. This includes seeking out intel and trading it with staffers; making introductions across offices (believe it or not, they often don’t know each other!); offering to write talking points, hearing questions, letters to relevant federal agencies, or op-eds for the Congressmembers; and much more.
• Finding any avenue to engage the Congressmember themselves. Often we are only talking to staffers, who will always do a majority of the work, but it’s likely the member is unaware of much of the legwork their staffers are doing until the last minute. If we don’t have direct connections with the members themselves, we need to find people (whether it be donors, lobbyists, friends, or others) who do. That means acting like journalists ourselves: cold emailing or calling, knocking on doors, finding leads, and not giving up when we hit dead ends.
• Engaging with reporters to ask on-the-record questions. Reporters likely aren’t going to sign letters or do advocacy themselves, but working with them, especially in the halls of Congress, to ask questions at press gaggles about the legislation as regularly as possible is the best way to get a lawmaker on the record. We should have a relationship with every single reporter who regularly covers Congress!
• Engaging news outlets’ owners and CEOs directly to get them personally involved as soon as possible. They need to do more than sign on to coalition letters too, and they can help with all of the above: they likely have direct connections with members themselves, they can hire lobbyists themselves (some even have under-the-radar lobbying budgets!), they have influence over their editorial boards, and much more. Of course, many won’t engage, but some will. All we need is a few of the big ones to do work behind the scenes.
• Ghost-writing op-eds. We might not always be the best messengers for our own message. It may be someone with a much higher public profile, or someone who is more sympathetic to a lawmaker or segment of the public we are targeting. We have to not only find the individuals to put their names behind our idea but also be OK with the fact that we will never get “credit” for the work.

Of course, I don’t want to imply we invented any of these tactics; many organizations already do at least some of these things on one issue or another, and others have had more lobbying success than us. It’s also true that a lot of these items involve calling in favors or using finite amounts of political capital. It means that we won’t be able to use all of these tactics for every single bill we want passed. But for at least one, or maybe a few, it can work if we commit as a group to work together on it and leave no stone unturned.

Let’s start with the PRESS Act.

Described by The New York Times as a “social conscience, multimedia collaborator, system builder, rhapsodist, historical thinker and multicultural gateway,” Iyer has carved out a unique path as an influential, prolific, shape-shifting presence in 21st-century music. A composer and pianist active and revered across multiple musical communities, Iyer has created a consistently innovative, emotionally resonant body of work over the last three decades, earning him a place as one of the leading music-makers of his generation.

Discussing his participation in this symposium, Iyer explained:

I have lived in New York City since 1998 and was home that morning in September 2001. Our immediate overwhelming sorrow and confusion soon was overlaid with pervasive anxiety, as every brown person became subject to new levels of surveillance and suspicion. “Welcome to racial profiling,” the writer Greg Tate told me that fall, highlighting our linked fates. At the time I was playing piano in poet Amiri Baraka’s band. Shortly after the attacks his iconic piece Somebody Blew Up America became a mainstay in our repertoire. 

Since then, every choice I’ve made as an artist has been structured by the U.S.’s post-9/11 descent into overt fascism, from my collaborative projects with poet Mike Ladd (In What Language? (2003), Still Life with Commentator (2007), and Holding it Down: The Veterans’ Dreams Project (2013)), to instrumental albums like Blood Sutra (2003), Tragicomic (2008), and Uneasy (2021), to a recent protest album with Wadada Leo Smith titled Defiant Life (2025). In this performance I will share selections from these and other projects as an activation of our present moment.

Iyer’s many honors include a MacArthur Fellowship, a Doris Duke Artist Award, a United States Artist Fellowship, the Alpert Award in the Arts, and three Grammy nominations. He is the Franklin D. and Florence Rosenblatt Professor of the Arts at Harvard University, with a joint appointment in the Department of Music and the Department of African and African American Studies.

The symposium will run from 4:00 pm ET on September 9th through 5:00 pm ET on September 10th and will feature panels and public interviews with scholars, lawyers, journalists, and advocates including M. Gessen, Lydia Polgreen, Phil Klay, Steve Coll, Rozina Ali, David Cole, Jelani Cobb, Aziz Rana, and many others, along with one-on-one conversations with Alberto Mora, Mohamedou Ould Slahi, and Mohsen Mahdawi. Iyer’s performance will take place on the opening evening–September 9th. 

Please register here to attend in person or to watch the livestream. Iyer’s performance will not be livestreamed.

“The Trump administration has used its immigration authority in shocking and unprecedented ways to target Mr. Khalil and other pro-Palestinian advocates based solely on their constitutionally protected speech, and it has done so precisely to terrify others into silence and stifle dissent,” said Xiangnong (George) Wang, staff attorney at the Knight First Amendment Institute. “The court should reverse the BIA’s decision and put an end to Mr. Khalil’s removal proceedings.”  

Khalil appealed his immigration case to the Fifth Circuit earlier this month, asking the court to reverse the BIA’s decision finding him removable and to terminate the proceedings entirely. Khalil argued that the BIA lacked the authority to sustain the key ground of his removal, that the grounds for his removal are unconstitutional, and that the immigration judge rushed to a decision without considering relevant evidence, refused to consider the constitutional challenges to his deportation, and improperly sustained pretextual, after-the-fact charges that the Trump administration brought in retaliation for his speech. 

In addition to arguing that the government targeted and retaliated against Khalil on the basis of his constitutionally protected political speech, the Knight Institute’s brief agrees with Khalil that the government’s conduct in this case was “outrageous” because Khalil’s advocacy implicates constitutional interests of the highest order, because the government’s targeting of Khalil and others based on their protected speech is particularly egregious, and because Khalil has an undeniable interest is avoiding targeted deportation that outweighs any interest the government may have in removing noncitizens due to disagreement with their views.

The Knight Institute challenged the Trump administration’s deportation policy in March 2025 on behalf of the American Association of University Professors and the Middle East Studies Association. After a nine-day trial, the district court issued a landmark ruling invalidating the Trump administration’s policy of targeting noncitizen students and faculty for arrest, detention, visa revocation, and deportation because of their pro-Palestinian advocacy. The court held that the policy violated the First Amendment and the Administrative Procedure Act and vacated the policy but declined to issue the injunction sought by the plaintiffs. The Knight Institute has asked the First Circuit Court of Appeals to permanently block the policy in order to end its continuing chilling effect on campuses nationwide. Read more about AAUP v. Rubio here.

The Knight Institute also previously filed an amicus brief in Khalil v. Trump, Khalil’s separate challenge to his unlawful arrest and detention, urging the U.S. Court of Appeals for the Third Circuit to find that the government’s detention and attempted deportation of Khalil on the basis of his protected speech is unconstitutional. Read more about that case here. 

Read the Knight Institute’s Fifth Circuit amicus brief here.

Read more about this lawsuit, Khalil v. Blanche, here.

Lawyers on the case include Alex Abdo, Xiangnong (George) Wang, Raya Koreh, and Jameel Jaffer of the Knight First Amendment Institute.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org.